STATE OF NEW JERSEY v. EDWARD DUDA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDWARD DUDA,

Defendant-Appellant.

_________________________________

October 7, 2015

Submitted September 9, 2015 Decided

Before Judges Leone and Higbee.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 5056.

Gruber, Colabella & Liuzza, attorneys for appellant (Daniel P. Agatino, of counsel; Virginia D. Liotta, on the briefs).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Chief Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Edward Duda was indicted for fourth-degree assault by auto, contrary to N.J.S.A. 2C:12-1(c)(2). He was also charged with the following motor vehicle offenses: driving while intoxicated (DWI), contrary to N.J.S.A. 39:4-50; unsafe lane change, contrary to N.J.S.A. 39:4-88(b); and careless driving, contrary to N.J.S.A. 39:4-97. Defendant was ultimately admitted into the Pretrial Intervention Program with respect to the count in the indictment, and the matter was remanded to Clifton Municipal Court for disposition of the motor vehicle charges. A trial was held on January 24, 2013 and February 13, 2013. The Municipal Court denied defendant's motion to dismiss for lack of probable cause and motion to exclude the Alcotest breath results. The Municipal Court then found defendant guilty of the DWI charge and dismissed the charges for careless driving and unsafe lane change.

Because this was defendant's third DWI offense, he was sentenced to a 180 day county jail term, a ten year loss of driving privileges, three years of having an ignition interlock device installed in his vehicle following the suspension of driving privileges, forty-eight hours of attendance at the Intoxicated Drivers Resource Center, thirty days of community service, and certain fines. The Municipal Court granted defendant's request for a stay of the jail term pending appeal. Thereafter, defendant timely filed a notice of appeal with the Superior Court of New Jersey, Law Division where he raised the following issues: (1) defendant's refusal to perform field sobriety tests should not be considered when determining probable cause or guilt for committing DWI, and (2) that results from the Alcotest should be excluded because the procedures followed by Trooper Matthew violated the requirements under State v. Chun, 194 N.J. 54, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008). The Law Division judge held a de novo review where oral argument was heard. She determined that evidence existed, independent of the refusal, to find probable cause that defendant was driving while intoxicated. She also determined that the Alcotest was performed in conformity with the requirements of Chun. Thereafter, the trial judge found defendant guilty of DWI, imposing the same sentence except for the thirty days of community service. The judge stayed the 180 day jail term to allow defendant to file an appeal. Defendant filed a notice of appeal, and now raises the following issues

POINT I

THE LOWER COURT ERRED AS A MATTER OF LAW IN HOLDING THAT A REFUSAL TO PERFORM FIELD SOBRIETY TESTING CAN ESTABLISH PROBABLE CAUSE TO ARREST A DEFENDANT FOR VIOLATING N.J.S.A. 39:4-50.

POINT II

THE LOWER COURT'S HOLDING THAT SUFFICIENT PROBABLE CAUSE EXISTED TO ARREST THE DEFENDANT FOR VIOLATING N.J.S.A. 39:4-50 WAS NOT SUPPORTED BY CREDIBLE EVIDENCE IN THE RECORD.

We affirm for the reasons that follow.

On September 10, 2010, New Jersey State Trooper Matthew (Matthew) responded to an accident on the Garden State Parkway. Upon his arrival, Matthew observed two vehicles in the right shoulder facing the opposite direction of traffic, and appearing to have been in a collision. One of the vehicles was operated by defendant. During the investigation, Matthew was standing within arm's length of defendant and noted an odor of alcohol emanating from his breath. Matthew also observed defendant's watery and bloodshot eyes, his flush face, and that he was swaying.

After defendant refused to perform any field sobriety tests, he was arrested and placed inside Matthew's patrol car. At police headquarters defendant provided breath samples that were examined using the Alcotest machine, revealing a blood alcohol content (BAC) of 0.08%. A person is guilty of DWI if he or she "operates a motor vehicle while under the influence of intoxicating liquor" or "operates a motor vehicle with a blood alcohol concentration of 0.08% or more . . . ." N.J.S.A. 39:4-50(a).

Defendant contests the Law Division's decision that the trooper had probable cause to arrest defendant because the court considered defendant's refusal to perform the field sobriety test. However, the court also found there to be sufficient facts, independent of the refusal, to base a finding of probable cause and to convict defendant of DWI. Defendant also challenges this evidence.

Our review is limited. We must determine whether the Law Division's de novo findings "could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964). The Law Division must make its own factual and legal findings, but is bound by the evidentiary record and must give deference to credibility findings of the municipal court. Johnson, supra, 42 N.J. at 157. However, our review of the Law Division's legal conclusions is de novo. State v. Kuropchak, 221 N.J. 368, 383 (2015).

Probable cause for an arrest exists "where a police officer has a well-founded suspicion or belief of guilt" that is "something less than the proof needed to convict and something more than a raw, unsupported suspicion." State v. Moskal, 246 N.J. Super. 12, 21 (App. Div. 1991) (citing State v. Wanczyk, 201 N.J. Super. 258, 266 (App. Div. 1985)). See also State v. Kasabucki, 52 N.J. 110, 116 (1968). Such a determination must be based on a "totality of the circumstances test" considering a police officer's "common and specialized experience." State v. Moore, 181 N.J. 40, 46 (2007) (citations and internal quotation marks omitted).

Probable cause that a person is intoxicated "may be based upon observational evidence." State v. Liberatore, 293 N.J. Super. 580, 589 (Law Div.) (holding that observational evidence may be sufficient "to find a defendant guilty beyond a reasonable doubt of DWI"), aff'd o.b., 293 N.J. Super. 536 (App. Div. 1996); Moskal, supra, 246 N.J. Super. at 20-21 (holding that defendant's flushed face, "drooping and red" eyes, strong odor of alcohol, and an admission of drinking established probable cause for arrest). In this case there was ample observational evidence to support the determination of the trooper that he had probable cause to arrest defendant. The trooper's observations of defendant included swaying, a flushed face, red and watery eyes, and the smell of alcohol emanating from defendant. Defendant suggests there were other possible causes of a flushed face and red and watery eyes. However, even if innocent connotations can be attributed to a person's behavior, an officer can make a determination that probable cause exists if he or she reasonably finds that behavior to be consistent with guilt. Cf. State v Citarella, 154 N.J. 272, 279-80 (1998) (holding that a person's actions can be the basis for reasonable suspicion even if innocent connotations can be ascribed to those actions).

Defendant also challenges the credibility of the trooper as to whether defendant was swaying, and whether the officer could have detected the smell of alcohol in the short time he spoke with defendant. Both the municipal judge and Law Division judge found the officer to be credible. Generally, appellate courts "should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." State v. Locurto, 157 N.J. 463, 474 (1999) (citing Midler v. Heinowitz, 10 N.J. 123, 128-29 (1952)).

Defendant also argues being a driver in an accident without a finding of fault on his part cannot be considered evidence of probable cause. The trial judge acknowledged she did not make a finding as to whether defendant caused the accident. This does not prevent the trooper from considering the fact that defendant was operating one of the vehicles involved in an accident when determining probable cause. In fact, the DWI statute states

Whenever an operator of a motor vehicle has been involved in an accident resulting in death, bodily injury, or property damage a police officer shall consider that fact along with all other facts and circumstances in determining whether there are reasonable grounds to believe that person was operating a motor vehicle in violation of this section.

[N.J.S.A. 39:4-50(a)(3) (emphasis added).]

Finally, the court found defendant's refusal to submit to field sobriety tests was another factor that can be considered in determining if there was probable cause. Defendant argues that there is no statute stating this proposition and the case law relied upon by the trial judge is either dicta or wrongly references other prior cases. Defendant points out that the holding in State v. Bryant, 328 N.J. Super. 379, 383 (App. Div. 2000), that a person's refusal to perform field sobriety tests "may be considered as further evidence of his intoxication" cited to the case of State v. Tabisz, 229 N.J. Super. 80, 82-83 (App. Div. 1988), which did not actually address field sobriety tests. Instead, Tabisz considered refusal to submit to a breath or blood test.

Defendant further argues that the trial judge's reliance on State v. Macuk 57 N.J. 1 (1970), overruled on other grounds by Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984), was improper because the issue before our Supreme Court was not field sobriety tests but was the Miranda rights of a defendant who refused a breath test.1 The only reference in the Macuk decision to physical sobriety tests other than blood or breath tests is one assertion that the police have the right to require physical coordination tests after an arrest based on probable cause. Id. at 14 (emphasis added). The State acknowledges there is no Supreme Court decision directly on point, but relies on the holding in Bryant even if it is not based on an existing body of case law.

We agree with defendant that there was no case before Bryant which clearly decided the issue, and that Bryant did so in considering a different question. However, as in Bryant, we believe it is logical to allow an officer to consider the refusal to perform field sobriety tests in determining probable cause. Such a refusal can indicate a consciousness of guilt. It is one factor which may be considered in the totality of the circumstances.

Here, the trial judge's clear statement on the record was that even if she did not consider the refusal to perform field sobriety tests, there was sufficient evidence to find probable cause for defendant's arrest. In any event, "[a]ny error or omissions shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result[.]" Kuropchak, supra, 221 N.J. at 383 (quoting R. 2:10-2).

The trooper arrived at the scene of a car accident on the Garden State Parkway where defendant operated one of the vehicles involves. He observed defendant's flush face, red and watery eyes, and the odor of alcohol emanating from defendant's breath. In addition, defendant refused to perform field sobriety tests, but even without this factor, there was sufficient evidence of probable cause for the arrest. For these reasons, defendant's conviction is affirmed. The stay is vacated, and the matter is remanded to the Law Division for implementation of the sentence.

Affirmed.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).